Title 49—Transportation--Volume 1
PART 105—HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL PROCEDURES
§ 105.5   Definitions.
(a) This part contains the definitions for certain words and phrases used throughout this subchapter (49 CFR parts 105 through 110). At the beginning of each subpart, the Pipeline and Hazardous Materials Safety Administration (“PHMSA” or “we”) will identify the defined terms that are used within the subpart—by listing them—and refer the reader to the definitions in this part. This way, readers will know that PHMSA has given a term a precise meaning and will know where to look for it.
(b) Terms used in this part are defined as follows:
Approval means a written authorization, including a competent authority approval, issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, to perform a function for which prior authorization by the Associate Administrator is required under subchapter C of this chapter (49 CFR parts 171 through 180).
Associate Administrator means Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.
Competent Authority means a national agency that is responsible, under its national law, for the control or regulation of some aspect of hazardous materials (dangerous goods) transportation. Another term for Competent Authority is “Appropriate authority” which is used in the International Civil Aviation Organization's (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air. The Associate Administrator is the United States Competent Authority for purposes of 49 CFR part 107.
Competent Authority Approval means an approval by the competent authority that is required under an international standard (for example, the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code). Any of the following may be considered a competent authority approval if it satisfies the requirement of an international standard:
(1) A specific regulation in subchapter A or C of this chapter.
(2) A special permit or approval issued under subchapter A or C of this chapter.
(3) A separate document issued to one or more persons by the Associate Administrator.
Federal hazardous material transportation law means 49 U.S.C. 5101 et seq.
File or Filed means received by the appropriate PHMSA or other designated office within the time specified in a regulation or rulemaking document.
Hazardous material means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. 5103). The term includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in part 173 of subchapter C of this chapter.
Hazardous Materials Regulations or HMR means the regulations at 49 CFR parts 171 through 180.
Indian tribe has the same meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).
Person means an individual, firm, copartnership, corporation, company, association, or joint-stock association (including any trustee, receiver, assignee, or similar representative); or a government or Indian tribe (or an agency or instrumentality of any government or Indian tribe) that transports a hazardous material to further a commercial enterprise or offers a hazardous material for transportation in commerce. Person does not include the following:
(1) The United States Postal Service.
(2) Any agency or instrumentality of the Federal government, for the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal penalties).
(3) Any government or Indian tribe (or an agency or instrumentality of any government or Indian tribe) that transports hazardous material for a governmental purpose.
Political subdivision means a municipality; a public agency or other instrumentality of one or more States, municipalities, or other political body of a State; or a public corporation, board, or commission established under the laws of one or more States.
Preemption determination means an administrative decision by the Associate Administrator that Federal hazardous materials law does or does not void a specific State, political subdivision, or Indian tribe requirement.
Regulations issued under Federal hazardous material transportation law include this subchapter A (parts 105-110) and subchapter C (parts 171-180) of this chapter, certain regulations in chapter I (United States Coast Guard) of title 46, Code of Federal Regulations, and in chapters III (Federal Motor Carrier Safety Administration) and XII (Transportation Security Administration) of subtitle B of this title, as indicated by the authority citations therein.
Special permit means a document issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).
State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other territory or possession of the United States designated by the Secretary.
Transports or Transportation means the movement of property and loading, unloading, or storage incidental to the movement.
Waiver of Preemption means a decision by the Associate Administrator to forego preemption of a non-Federal requirement—that is, to allow a State, political subdivision or Indian tribe requirement to remain in effect. The non-Federal requirement must provide at least as much public protection as the Federal hazardous materials transportation law and the regulations issued under Federal hazardous materials transportation law, and may not unreasonably burden commerce.
§ 105.15   Defined terms used in this subpart.
The following defined terms (see subpart A of this part) appear in this subpart: Approval; Federal hazardous material transportation law; Hazardous material; Hazardous materials regulations; Indian tribe; Preemption determination; Special permit; State; Transportation; Waiver of preemption
§ 105.20   Guidance and interpretations.
(a) Hazardous materials regulations. You can obtain information and answers to your questions on compliance with the hazardous materials regulations (49 CFR parts 171 through 180) and interpretations of those regulations by contacting PHMSA's Office of Hazardous Materials Safety as follows:
(1) Call the Hazardous Materials Information Center at 1-800-467-4922 (in Washington, DC, call (202) 366-4488). The Center is staffed from 9 a.m. through 5 p.m. Eastern time, Monday through Friday except Federal holidays. After hours, you can leave a recorded message and your call will be returned by the next business day.
(2) E-mail the Hazardous Materials Information Center at infocntr@dot.gov.
(3) Obtain hazardous materials safety information via the Internet at http://www.phmsa.dot.gov.
(4) Send a letter, with your return address and a daytime telephone number, to: Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, Attn: PHH-10, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(b) Federal hazardous materials transportation law and preemption. You can obtain information and answers to your questions on Federal hazardous materials transportation law, 49 U.S.C. 5101 et seq., and Federal preemption of State, local, and Indian tribe hazardous material transportation requirements, by contacting PHMSA's Office of the Chief Counsel as follows:
(1) Call the office of the Chief Counsel at (202) 366-4400 from 9 a.m. to 5 p.m. Eastern time, Monday through Friday except Federal holidays.
(2) Access information from the Office of the Chief Counsel via the Internet at http://www.phmsa.dot.gov.
(3) Send a letter, with your return address and a daytime telephone number, to: Office of the Chief Counsel, Pipeline and Hazardous Materials Safety Administration, Attn: PHC-10, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Contact the Office of the Chief Counsel for a copy of applications for preemption determinations, waiver of preemption determinations, and inconsistency rulings received by PHMSA before February 1, 1997.
§ 105.25   Reviewing public documents.
PHMSA is required by statute to make certain documents and information available to the public. You can review and copy publicly available documents and information at the locations described in this section.
(a) DOT Docket Management System. Unless a particular document says otherwise, the following documents are available for public review and copying at the Department of Transportation's Docket Management System, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, or for review and downloading through the Internet at http://www.regulations.gov.
(1) Rulemaking documents in proceedings started after February 1, 1997, including notices of proposed rulemaking, advance notices of proposed rulemaking, public comments, related Federal Register notices, final rules, appeals, and PHMSA's decisions in response to appeals.
(2) Applications for special permits numbered DOT-E or DOT-SP 11832 and above. Also available are supporting data, memoranda of any informal meetings with applicants, related Federal Register notices, public comments, and decisions granting or denying applications for special permits.
(3) Applications for preemption determinations and waiver of preemption determinations received by PHMSA after February 1, 1997. Also available are public comments, Federal Register notices, and PHMSA's rulings, determinations, decisions on reconsideration, and orders issued in response to those applications.
(b) Office of Pipeline and Hazardous Materials Safety Administration's Office of Hazardous Materials Safety. (1) You may obtain documents ( e.g. , proposed and final rules, notices, letters of clarification, safety notices, DOT forms and other documents) by contacting the Hazardous Materials Information Center at 1-800-467-4922 or through the Internet at http://www.phmsa.dot.gov.
(2) Upon your written request, we will make the following documents and information available to you:
(i) Appeals under 49 CFR part 107 and PHMSA's decisions issued in response to those appeals.
(ii) Records of compliance order proceedings and PHMSA compliance orders.
(iii) Applications for approvals, including supporting data, memoranda of any informal meetings with applicants, and decisions granting or denying approvals applications.
(iv) Applications for special permits numbered below DOT-E or DOT-SP 11832 and related background information are available for public review and copying at the Office of Hazardous Materials Safety, Approvals and Permits Division, U.S. Department of Transportation, PHH-30, East Building, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(v) Other information about PHMSA's hazardous materials program required by statute to be made available to the public for review and copying and any other information PHMSA decides should be available to the public.
(3) Your written request to review documents should include the following:
(i) A detailed description of the documents you wish to review.
(ii) Your name, address, and telephone number.
(4) Send your written request to: Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, Attn: PHH-1, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
§ 105.26   Obtaining records on file with PHMSA.
To obtain records on file with PHMSA, other than those described in § 105.25, you must file a request with PHMSA under the Freedom of Information Act (FOIA) (5 U.S.C. 552). The procedures for filing a FOIA request are contained in 49 CFR part 7.
§ 105.30   Information made available to the public and request for confidential treatment.
When you submit information to PHMSA during a rulemaking proceeding, as part of your application for special permit or approval, or for any other reason, we may make that information publicly available unless you ask that we keep the information confidential.
(a) Asking for confidential treatment. You may ask us to give confidential treatment to information you give to the agency by taking the following steps:
(1) Mark “confidential” on each page of the original document you would like to keep confidential.
(2) Send us, along with the original document, a second copy of the original document with the confidential information deleted.
(3) Explain why the information you are submitting is confidential (for example, it is exempt from mandatory public disclosure under the Freedom of Information Act, 5 U.S.C. 552 or it is information referred to in 18 U.S.C. 1905).
(b) PHMSA Decision. PHMSA will decide whether or not to treat your information as confidential. We will notify you, in writing, of a decision to grant or deny confidentiality at least five days before the information is publicly disclosed, and give you an opportunity to respond.
§ 105.35   Serving documents in PHMSA proceedings.
(a) Service by PHMSA. We may serve the document by one of the following methods, except where a different method of service is specifically required:
(1) Registered or certified mail.
(i) If we serve a document by registered or certified mail, it is considered served when mailed.
(ii) An official United States Postal Service receipt from the registered or certified mailing is proof of service.
(iii) We may serve a person's authorized representative or agent by registered or certified mail, or in any other manner authorized by law. Service on a person's authorized agent is the same as service on the person.
(2) Personal service.
(3) Publication in the Federal Register.
(4) Electronic service. (i) Service by electronic means if consented to in writing by the party to be served.
(ii) For all special permits and approvals actions, electronic service is authorized.
(b) Service by others. If you are required under this subchapter to serve a person with a document, serve the document by one of the following methods, except where a different method of service is specifically required:
(1) Registered or certified mail.
(i) If you serve a document by registered or certified mail, it is considered served when mailed.
(ii) An official United States Postal Service receipt from the registered or certified mailing is proof of service.
(iii) You may serve a person's authorized representative or agent by registered or certified mail or in any other manner authorized by law. Service on a person's authorized agent is the same as service on the person.
(2) Personal service.
(3) Electronic service.
(i) In a proceeding under § 107.317 of this subchapter (an administrative law judge proceeding), you may electronically serve documents on us.
(ii) Serve documents electronically through the Internet at http://www.regulations.gov.
§ 105.40   Designated agents for non-residents.
(a) General requirement. If you are not a resident of the United States but are required by this subchapter or subchapter C of this chapter to designate a permanent resident of the United States to act as your agent and receive documents on your behalf, you must prepare a designation and file it with us.
(b) Agents. An agent, also known as “agent for service of process”:
(1) May be an individual, a firm, or a domestic corporation.
(2) May represent any number of principals.
(3) May not reassign responsibilities under a designation to another person.
(c) Preparing a designation. Your designation must be written and dated, and it must contain the following information:
(1) The section in the HMR that requires you to file a designation.
(2) A certification that the designation is in the correct legal form required to make it valid and binding on you under the laws, corporate bylaws, and other requirements that apply to designations at the time and place you are making the designation.
(3) Your full legal name, the principal name of your business, and your mailing address.
(4) A statement that your designation will remain in effect until you withdraw or replace it.
(5) The legal name and mailing address of your agent.
(6) A declaration of acceptance signed by your agent.
(d) Each designation must be submitted to: Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, Attn: PHH-30, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 or by electronic mail to: specialpermits@dot.gov or approvals@dot.gov as appropriate.
(e) Designations are binding. You are bound by your designation of an agent, even if you did not follow all the requirements in this section, until we reject your designation.
§ 105.45   Issuing a subpoena.
(a) Subpoenas explained. A subpoena is a document that may require you to attend a proceeding, produce documents or other physical evidence in your possession or control, or both. PHMSA may issue a subpoena either on its initiative or at the request of someone participating in a proceeding. Anyone who requests that PHMSA issue a subpoena must show that the subpoena seeks information that will materially advance the proceeding.
(b) Attendance and mileage expenses. (1) If you receive a subpoena to attend a proceeding under this part, you may receive money to cover attendance and mileage expenses. The attendance and mileage fees will be the same as those paid to a witness in a proceeding in the district courts of the United States.
(2) If PHMSA issues a subpoena to you based upon a request, the requester must serve a copy of the original subpoena on you, as required in § 105.50. The requester must also include attendance and mileage fees with the subpoena unless the requester asks PHMSA to pay the attendance and mileage fees because of demonstrated financial hardship and PHMSA agrees to do so.
(3) If PHMSA issues a subpoena at the request of an officer or agency of the Federal government, the officer or agency is not required to include attendance and mileage fees when serving the subpoena. The officer or agency must pay the fees before you leave the hearing at which you testify.
§ 105.50   Serving a subpoena.
(a) Personal service. Anyone who is not an interested party and who is at least 18 years of age may serve you with a subpoena and fees by handing the subpoena and fees to you, by leaving them at your office with the individual in charge, or by leaving them at your house with someone who lives there and is capable of making sure that you receive them. If PHMSA issues a subpoena to an entity, rather than an individual, personal service is made by delivering the subpoena and fees to the entity's registered agent for service of process or to any officer, director or agent in charge of any of the entity's offices.
(b) Service by mail. You may be served with a copy of a subpoena and fees by certified or registered mail at your last known address. Service of a subpoena and fees may also be made by registered or certified mail to your agent for service of process or any of your representatives at that person's last known address.
(c) Other methods. You may be served with a copy of a subpoena by any method where you receive actual notice of the subpoena and receive the fees before leaving the hearing at which you testify.
(d) Filing after service. After service is complete, the individual who served a copy of a subpoena and fees must file the original subpoena and a certificate of service with the PHMSA official who is responsible for conducting the hearing.
§ 105.55   Refusal to obey a subpoena.
(a) Quashing or modifying a subpoena. If you receive a subpoena, you can ask PHMSA to overturn (“quash”) or modify the subpoena within 10 days after the subpoena is served on you. Your request must briefly explain the reasons you are asking for the subpoena to be quashed or modified. PHMSA may then do the following:
(1) Deny your request.
(2) Quash or modify the subpoena.
(3) Grant your request on the condition that you satisfy certain specified requirements.
(b) Failure to obey. If you disobey a subpoena, PHMSA may ask the Attorney General to seek help from the United States District Court for the appropriate District to compel you, after notice, to appear before PHMSA and give testimony, produce subpoenaed documents or physical evidence, or both.